Court rules against aerial applicator

A $400 Arkansas Plant Board fine is upping the angst for some Arkansas aerial applicators. Those applicators insist that a late-June Arkansas Supreme Court ruling opens the door for a festival of litigation by field-side residents claiming chemical drift.

“The Arkansas Supreme Court affirmed that the Arkansas Plant Board is able to do pretty much whatever it wants regarding this issue. That's not good because the evidence shows that Bullock (Flying Service) did everything according to label directions and still was held responsible.

“The implications are that in the future aerial applicators, no matter how careful they are, can be held liable if there's off-target drift,” says Rusty Berry, a Dewitt attorney who represented the flying service in the case.

Others, however, are happy with the finding. “Overall the reaction to this from aerial applicators is happiness. There are a few who don't agree. But applicators know they're being watched and must be extremely careful and vigilant. They also know when something like this happens, the Plant Board needs some teeth,” says Dennis Gardisser, Arkansas Extension agricultural engineer.

Gardens and drift

The dispute and ensuing fine was over a garden located a quarter mile south of a rice field where Bullock was applying Stam 4E. The garden owners claim that in 1996 spray drifted onto their garden and ruined it.

Berry says there were conflicting accounts. “There was a lady with a house between the application field and the garden owners. She said that she was in her yard at the same time and felt no drift, saw no drift, smelled no drift.”

Was the plane functioning properly and outfitted with modern gauges and GPS?

“Oh yes. All of that was entered into evidence before the Plant Board. We showed that the plane was functioning properly, that it was properly equipped, and the spray was applied properly. The pilot was even laying off the ends just to be sure drift didn't occur,” says Berry.

Bullock sprayed part of the field the afternoon prior to the alleged drift. “After the wind changed, they split (the application) up. They know about drift and didn't want it to happen. The Plant Board says that any time there's an off-target drift, it's a violation no matter how careful the applicator is being,” says Berry.

Fighting this was a matter of principle, he says. “The $400 isn't worth all this trouble. But the flying service felt it had done nothing wrong. Extra care had been used to assure that everything was done properly, and they were still hit.”

Plant Board's view

The Plant Board has always operated under the presumption that when you put out an agricultural chemical, it should go where it's meant to go, says Daryl Little, assistant director of the Arkansas Plant Board. “If it goes off-target and the label says that's not allowed, then we have to take action.

“The reason this case is important is because this is simply the first applicator that chose to challenge us. Our stance was upheld, and the Arkansas Supreme Court's finding didn't so much set a precedence as confirm what we've known all along.”

How does the board approach drift complaints? What kind of evidence does a complainant have to have in order for an applicator to be held liable?

That's always the big issue, admits Little. “It depends on the case. There's no cookie-cutter solution. There are certain cases where our inspectors have tracked the material and the evidence he's gathered warrants a penalty. Then again, the inspector may have tracked material but the photos aren't good, the weather data is confusing and there isn't a solid case for a penalty.”

In this particular case, Little says, the complainant “was standing in her yard when the application was made. She was very credible in terms of what she saw, smelled and felt.”

Was this case hard or simple to decide?

“It wasn't hard for us. The board ruled unanimously for a fine. Incidentally, there's an informal process for enforcement that we use if an applicator wants to settle this before a hearing occurs. In this case, the applicator wanted a hearing. So that's what happened.”

Appeals process

In general, the fact-finding and appeals process in cases like Bullock's begins when the Plant Board hears a complaint and issues a notice of violation. This is followed by an appearance before the Plant Board Pesticide Committee. If that committee finds against an applicator, he has the right to appeal the decision to the full Plant Board.

Bullock did and at that time a transcript was made of the hearing and all evidence that was offered. The Plant Board still found against the flying service.

At that point, Bullock appealed to the Arkansas County Circuit Court. The judge there reversed the Plant Board decision.

Taking advantage of its right to appeal, the Plant Board turned to the state Supreme Court. With that court's finding against his client, Berry says in terms of appeals, “that's the end of the line.”

What does the finding mean? It depends on which side is speaking.

“I think the aerial applicators are in a very bad situation now. No matter how much care they use, they'll be held responsible. In this economic climate that's troublesome,” says Berry.

Any claims that this will lead to a sue-fest are hollow, says Little. Applicators' liabilities, when putting out products like propanil around residences, are already extensive.

“If applicators don't use the utmost caution, they'll be sued whether the Plant Board is here or not. I want to emphasize that the industry not only supports us, but they also helped develop this appeals procedure. It's very open, and we ask applicators on the front end to bring any exonerating evidence forward. We look at all of it,” says Little.